Plemmenou v. Arvanitakis

• Decision Date: 10 April 2007
• Docket Number: 2006-00448.
• Parties: KLIO PLEMMENOU, Plaintiff, v. STAVROULA ARVANITAKIS, Defendant, and DIME SAVINGS BANK OF WILLIAMSBURGH, Defendant and Third-Party Plaintiff-Appellant. EUGENE ANNINOS, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 612

833 N.Y.S.2d 596

2007 NY Slip Op 03113

KLIO PLEMMENOU, Plaintiff, v. STAVROULA ARVANITAKIS, Defendant, and DIME SAVINGS BANK OF WILLIAMSBURGH, Defendant and Third-Party Plaintiff-Appellant.

EUGENE ANNINOS, Third-Party Defendant-Respondent.

2006-00448.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 10, 2007.

In an action pursuant to RPAPL article 15 for a judgment, inter alia, declaring that the mortgage lien held by the defendant third-party plaintiff on certain real property is null and void, the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), entered August 25, 2005, which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the third-party defendant's counterclaim and pursuant to CPLR 3211 (b) to dismiss the third-party defendant's affirmative defenses.

Ordered that the order is reversed, on the law, with costs, and the motion to dismiss the third-party defendant's counterclaim and affirmative defenses is granted.

The plaintiff commenced this action to set aside a conveyance of real property and for a judgment declaring that the mortgage lien held by the defendant third-party plaintiff (hereinafter the bank) on certain real property is null and void. She alleged that the third-party defendant Eugene Anninos (hereinafter the notary) notarized a signature purporting to be hers on a power of attorney. The plaintiff alleged that she did not appear before the notary and did not execute the power of attorney. The power of attorney, by its terms, appointed the plaintiff's former husband, Konstantinos Adamopoulos, as her attorney in fact. The plaintiff alleged that Adamopoulos improperly used the power of attorney to convey her real property to a third party.

The bank commenced a third-party action against the notary for indemnification. It alleged that it relied upon the notarization when it approved the mortgage loan and accepted the mortgage documents, and that in the event the plaintiff obtained a judgment declaring that the mortgage is void, based upon an invalid power of attorney in the chain of title, it would sustain damages as a result of the notary's misconduct. The bank thus alleged that it would be entitled to judgment against the notary for such damages. In its answer to the third-party complaint, the notary denied the bank's material allegations, interposed 16 affirmative defenses, and asserted a counterclaim for common-law contribution and indemnification, based upon the damages he would sustain if found liable for notarial misconduct pursuant to Executive Law § 135. The court denied the bank's motion to dismiss the counterclaim and the affirmative defenses. We reverse.

The Supreme Court should have granted the bank's motion to dismiss all of the affirmative defenses and the counterclaim. The first affirmative defense alleges that the third-party action fails to state a claim upon which relief may be granted. However, such a defense must be raised by appropriate motion pursuant to CPLR 3211 (a) (7) (see Petracca v Petracca, 305 AD2d 566, 567 [2003]; Propoco, Inc. v Birnbaum, 157 AD2d 774, 775 [1990]; Bentivegna v Meenan Oil Co., 126 AD2d 506, 507-508 [1987]; Glenesk v Guidance Realty Corp., 36 AD2d 852, 853 [1971]). The ninth, tenth, eleventh, thirteenth, and fifteenth affirmative defenses should have been dismissed because they simply repeat denials already set forth in the answer to the third-party complaint (see Gold v Swiss Air Transp. Co., 33 AD2d 777, 778 [1969]; Polychrome Corp. v Lithotech Corp., 6 AD2d 892 [1958]). The twelfth and sixteenth affirmative defenses are insufficient because they merely plead conclusions of law and are unsupported by facts (see Petracca v Petracca, supra at 567; Bentivegna v Meenan Oil Co., supra at 508; Glenesk v Guidance Realty Corp., supra at 853).

The second, third, fourth,...